Judge to decide Florida ban on smokable medical marijuana

John Morgan, who helped get Florida’s medical marijuana amendment on the ballot and passed in 2016, takes questions before a trial on whether the ban on smoking cannabis is allowed under the state constitution on Wednesday, May 16, 2018, in Tallahassee, Fla. (AP Photo/Joe Reedy)

Voters approved a constitutional amendment in 2016 allowing the use of medical marijuana. The only mention of smoking in the amendment's language and in an intent document during the 2016 campaign was that the Legislature and local governments could restrict it in public places.

"I don't think you need to be too much of a legal scholar to understand it means it is allowed in other places," said John Morgan, who led the effort to get the constitutional amendment passed.

The Legislature last year passed enacting laws that banned the sale of smoking products, saying that poses a health risk. The laws, which were signed by Florida Gov. Rick Scott in June, state that patients can use cannabis through vaping and in food, oils, sprays and tinctures.

Jon Mills, who represented the plaintiffs, said in closing arguments that the intent document clearly laid out that private use was not illegal.

"It does allow regulation of amount but not type. Clearly smokable marijuana is a type of marijuana," he said.

Deputy Solicitor General Rachel Nordby, representing the state, deemed the law was constitutional because the Legislature has a role in policing public health concerns.

"This case is not about what is or what is not marijuana. This case is about is the permissible plain uses of marijuana," she said.

One of the women who appeared was Cathy Jordan, who has had ALS since 1986. Jordan told the judge that smoking the plant is the only effective way for her to use it as medicine.

Jordan testified that smoking it dries her excess saliva, increases her appetite and works as a muscle relaxer.

Jordan said that when she was diagnosed with ALS — amyotrophic lateral sclerosis — doctors thought she would live only three to five more years. She credits smoking with helping to prolong her life and has been supported by her physicians.

"Today we saw a woman literally fighting for her life hoping to smoke medical marijuana ... ," Morgan said. "The state of Florida is in fact trying to take her life and so many like her. If I was (Attorney General) Pam Bondi and Rick Scott I'd take a look at this video and say enough is enough. Let's stop the politics and let these people live."

John Tupps, a spokesman for Gov. Scott, said the state's Department of Health has been "working nonstop" to implement the law that was passed with an overwhelming bipartisan majority.

"Implementing Amendment 2 has been delayed by the constant litigation filed by special interests," he said.

Diana Dodson, who has had HIV since 1991, testified that vaping is 50 percent less effective than smoking and that smoking allows her to get the proper dosage needed.

Gievers isn't expected to take much time in ruling on the case. Both sides, though, agree that this is likely the first step in a longer legal battle.

"The judge implied as much herself. Whatever her ruling is, this ain't stopping in Leon County Circuit Court," said Ben Pollara, who runs Florida for Care, a nonprofit medical marijuana advocacy group. "I've always thought we had a strong case. It is in the constitution and pretty clear conflict with the statute."